Posts

Last week the Third Circuit drew a line in the sand, further deepening a circuit split, on the question of whether prior drug possession convictions were admissible under Federal Rule of Evidence 404(b) to prove knowledge or intent to distribute. The Third Circuit held that the prior convictions were not admissible, vacated the defendant’s conviction, and remanded to the trial court. Terrell Davis was arrested and convicted for possession of cocaine with intent to distribute....

A prisoner ejaculation lawsuit? What’s this all about? Prisons can be funny places. Not funny “ha-ha,” but funny “what planet are you living on?” For example, sex occurs in prisons – that’s a fact – but prisons have been routinely against providing condoms in order to limit the transmission of STDs between prisoners. Why? The outmoded logic that, because sex between prisoners isn’t permitted, providing condoms would be an incentive to have sex....

Heralded as a major church-state decision, the U.S. Supreme Court said a church-owned school is entitled to state funds available for playgrounds open to the public. The decision in Trinity Lutheran Church of Columbia v. Comer marked a turning point in the church-state debate and an ending point for the Court session. The justices have taken a recess for the summer. Observers called the case a “major” decision under the Free Exercise clause....

First Trimester. A state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor under medically safe conditions. Second Trimester. A state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman. Third Trimester. A state’s interest in protecting the potential human life outweighs the woman’s right to privacy, and the state may prohibit abortions unless abortion is necessary to save the life or health of the mother....

In an action under the Fair Labor Standards Act seeking compensation for the time plaintiff spent commuting to worksites in defendant’s vehicles, summary judgment for defendant is affirmed in part where use of an employer’s vehicle for commuting is not compensable, but reversed in part where the transmissions plaintiff sent to defendant at the end of the working day may be compensable. Read Rutti v. Lojack Corp., No. 07-56599 Appellate Information...

Gragg v. Astrue, No. 09-3238, involved plaintiff’s appeal from the judgment of the district court upholding the Social Security Commissioner’s denial of his application for disability insurance benefits and supplemental security income. The court affirmed on the grounds that 1) plaintiff’s experts’ reports did not support plaintiff’s argument that they concluded borderline intellectual functioning was a severe impairment separate and apart from a learning disorder; and 2) the hypothetical the ALJ gave to a vocational expert properly incorporated the limitations imposed by plaintiff’s physical disabilities in combination with his cognitive impairments, and was not defective....

Here’s a fun guessing game: which current presidential contender’s Supreme Court clerkship was characterized by an obsession with the death penalty and the “lurid details of murders?” Not sure? Here’s a hint: he was born in Canada. That’s right, Senator Ted Cruz’s stint as clerk for then-Supreme Court Chief Justice William Rehnquist in 1996 was marked by Cruz’s morbid, charnel house fixation on capital punishment and grisly murders. That is, at least according to The New York Times....

The Ninth Circuit may soon be getting a new judge and it is likely to be Northern District of California Judge Lucy Koh, the San Jose Mercury News reports. Judge Koh, who we once dubbed the “most powerful woman in Silicon Valley,” is best known for presiding over the Apple v. Samsung trial, where she won over our hearts by slapping down Apple’s request for additional witnesses by asking its attorney if he was smoking crack....

Air travel continues to be one of the industries that have been hit hardest by the COVID-19 pandemic. International travel has crawled to a virtual standstill as countries close their borders, and many Americans remain too nervous about infection to board domestic flights despite mask requirements and other safety measures. But what if airlines started leaning heavier into vaccines — once they are available — and testing as part of their safety programs?...

The Ninth Circuit has reinstated a proposed class action against Johnson & Johnson and McNeil Nutritionals over allegedly misleading health claims and the trans fat content of their Benecol butter substitute, once hailed as one of the first foods “designed to act like medicine.” Benecol, whose name is meant to evoke “good cholesterol,” claims to contain no trans fats and reduce cholesterol through the inclusion of plant stanol esters. Much to Reid’s chagrin, a serving of Benecol included up to half a gram of trans fats....

In an action alleging excessive force by the police, district court judgment denying defendants’ motion for summary judgment based on qualified immunity is affirmed where: 1) the court did not err in concluding that the officer’s use of force was not objectively reasonable as a matter of law; 2) the law is clearly established such that a reasonable police officer is informed that it is unlawful to Taser a nonviolent, suspected misdemeanant who was not fleeing or resisting arrest and posed little or no threat to anyone’s safety; and 3) a jury could find defendant is not entitled to official immunity because he willfully violated plaintiff’s right to be free from excessive force....

The Sixth Circuit employed a rather fascinating analogy comparing historical cell-site records of caller data to mailing addresses, thus raising questions about reasonable expectations of privacy. The result? The Stored Communications Act within the Sixth Circuit does not equal a mega-search. Lawyers should compare this ruling with the Houston Family case ruling, also decided by the Sixth Circuit. A quick review of the court’s language shows a remarkable consistency in theme....

Estate of Escobedo v. Bender, No. 08-2365, involved a 42 U.S.C. section 1983 suit filed by a personal representative on behalf of the deceased plaintiff against a city and individual members of the city’s police department claiming excessive force arising from plaintiff’s shooting death. As stated in the decision: “Based on the pre-existing case law, it was clearly established as of July 19, 2005, that throwing a flash bang device blindly into an apartment where there are accelerants, without a fire extinguisher, and where the individual attempting to be seized is not an unusually dangerous individual, is not the subject of an arrest, and has not threatened to harm anyone but himself, is an unreasonable use of force....

Appeal of district court’s denial of plaintiff’s petition for writ of habeas corpus is dismissed and the issuance of a certificate of appealabilty is declined where plaintiff has not made a substantial showing that his constitutional rights have been violated irremediably or a substantial showing of a need for federal intervention. Read Evans v. Circuit Court of Cook County, IL, No. 08-4220 Appellate InformationAppeal from the United States District Court for the Northern District of Illinois, Eastern Division....

FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the internet. World Elder Abuse Awareness Day took place last week on June 15. This Awareness Day highlights how older populations are vulnerable to various forms of fraud and seeks to promote education and strategies to prevent the elderly from being victims of deception. At the federal level here in the United States, the Elder Abuse Prevention and Prosecution Act was enacted in 2017, and the Department of Justice brought forth the Elder Justice Initiative....

The Second Circuit sent a clear message recently by overturning a lower federal court’s ruling that Georg F.W. Schaeffler’s sharing of privileged work-product with another party of “common legal interest” amounted to waiver. The controversy arises out of facts that go as far back to the beginnings of the 2008 crash: the Lehman Brothers bankruptcy announcement. Schaeffler, purportedly Germany’s richest person, owned an overwhelming majority stake in his family’s Shaeffler Group....

Halloween is a yearly event where it seems like there are no rules. Hiding your identity? Sure. Roaming around the neighborhood late at night? No problem. Accepting candy from strangers? Go for it. However, there are a few laws to keep in mind as you celebrate (responsibly). There is a 17% increase in crime-related claims on October 31st, according to the insurance company Travelers. Knowing the law keeps your Halloween events and activities fun and safe....

The police in Tulsa, Oklahoma got a phone call from a lady who had stumbled upon child pornography on her live-in boyfriend’s computer. Joseph Benoit, the owner of the child porn, contends that the evidence should have been suppressed due to a Fourth Amendment violation. There are two problems with his argument. First, the Fourth Amendment doesn’t apply to private parties. His girlfriend and her buddy were the ones who searched the computer....

In a petition for a writ of mandamus seeking to vacate a discovery order issued by the district court on the ground that the order required the production of attorney work product documents, the petition is denied where the disputed documents were not prepared in anticipation of litigation. Read In re Professionals Direct Ins. Co., No. 08-4440 Appellate Information Argued: April 30, 2009 Decided and Filed: August 24, 2009 Judges...

Usually, judges like to see cases settled. But Judge P.K. Holmes was not one of those judges in Adams v. USAA Casualty Insurance Company. He found out that the parties in one of his former cases had settled in another court, and he wanted to know why he shouldn’t sanction the lawyers for forum shopping. One sanctions order and an appeal later, the U.S. Eighth Circuit Court of Appeals gave the lawyers a reprieve because the federal rules allowed it....